[2004] KEHC 1224 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL CASE NO. 85 OF 2003

REPUBLIC………………………………………PROSECUTOR

VERSUS

JOHN MWANGI MUIRURI……………………..…..ACCUSED

RULING

The Subject, John Mwangi Muiruri was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on the 26th June 2002 at Mwisho wa Lami, Mau Narok Location, Nakuru District, the subject murdered Moses Mungai. The subject pleaded not guilty to the charge. The Prosecution called a total of eight witnesses. At the conclusion of the Prosecution’s case, Counsel for the subject made submissions to the effect that the Prosecution had not established a prima facie case as to enable this Court to put the subject on his defence.

It was the Prosecution’s case that the subject had with malice aforethought killed the deceased. PW 1 Beth Warunguru Muiruri, the mother of the subject and the deceased testified that on the 26th June 2002 she had gone to church. She had left her seven children including the subject and the deceased at home.The subject was the first born of PW 1, whilst Moses Mungai (hereinafter referred to as the deceased ) was then aged four years. It was her testimony that when she came back from the church at about 6. 30 p.m., she found the deceased missing from home. She inquired of his whereabouts but was unable to make any headway. A search was mounted to look for the deceased. PW 1 after looking for the deceased in vain within the neighbourhood, decided to go to see if the deceased was at his aunt’s place (i.e. the sister to PW 1’s husband ). She did not find the deceased there. When she came back home she found her husband who informed her that the deceased had been found. PW 1’s husband took PW 1 to where the deceased was found. It was about 9. 00 p.m. PW 1 saw that the deceased was lying on his back and was dead.

PW 1 testified that after being shown the body, she left all the arrangements to her husband. She testified that the subject assisted her to look for the deceased when the deceased was lost. She further testified that the subject had not behaved as if he was someone who had killed someone. She further testified that the subject was a well behaved child and had a cordial relationship with the other children. PW 1 did not know who killed the deceased.

PW 2 Anna Wanjiru Ngugi testified that she was the aunt to the deceased. It was her testimony that one the material day PW 1 went to her house late in the evening inquiring if she had seen the deceased. PW 2 answered in the negative. PW 2 then assisted PW 1 to look for the deceased, after a search, was found near the house of PW 1. PW 2 did not see the body on that night. On the following day she saw the body of the deceased. It had a rope on its neck made of sisal. She further testified that the Police came and took the body away. PW 2 did not know who could have put the said sisal rope on the neck of the deceased. PW 2 further testified that the subject was a well behaved child.

PW 3 Stephen Kimani Nganga a farmer from Mau Narok testified that on the material day about 7. 30 p.m. while he was chatting with a neighbour, Joseph Maina, he heard screams emanating from the home of PW 1. His house was about four hundred metres from the home of PW 1. He went to investigate. He found that the people in the homestead were screaming because one of their children had been found dead. A decision was made that the incident be reported to the Police. PW 3 reported to the Anti-stock theft unit camp which was nearby. The report was made to the said Police at about 8. 30 p.m.

PW 4 Police Constable Moses Kimutai Kandie testified that he was a Police Officer attached to the Anti Stock Theft Unit at Mwisho wa Lami Patrol Base. It was his testimony that on the material day he received a report from PW 3 and two others that a child had been killed.He accompanied the three with two other Police Officers, Corporal Wambugu and Police Constable Ng’eno. When they reached the scene they found the deceased lying on his back. The head of the deceased was tilted towards the right side. The deceased had a rope on his neck. The rope was a sisal rope. It was tied round the deceased’s neck in a loop knot. The deceased’s nose were oozing blood. The blood had dried. PW 4 testified that the subject’s father then told him that the subject had killed the Deceased. PW 4 then arrested the Subject. PW 4 testified that the only reason he arrested the Subject was because his father had implicated him in the killing of the deceased. It was PW 4’s evidence that he informed the Police from Mau Narok who later came and took the body of the deceased together with the Subject. PW 4 further testified that he did not know if the person who suspected the subject was not actually the father of the subject or his stepfather. PW 4 testified that apart from arresting the Subject, he did not play any other role in the case.

PW 5 Samuel Wanyiri, a minor, testified that he was a standard five pupil at Ngwataniro Primary School. He testified that the deceased and the Subject were his brothers. It was his testimony that on the material day they had been left home by their parents who had gone to church. At about 5. 00 p.m., the deceased and one of his sisters called Njeri, went to fetch firewood. Njeri came back without the deceased. When the parents came home, they asked where the deceased was. PW 5 did not know where the deceased was. A search was mounted. At about 8. 30 p.m. the body of the deceased was found at the edge of the farm. PW 5 testified that the deceased had a rope on his neck. The rope was blue in colour. It was his testimony that the rope in question was not a sisal rope. PW 5 testified that on the day he did not see the subject with the deceased. He testified that while their other children fetched firewood, the Subject had gone to fetch water. PW 4 testified that he did not know who had taken the deceased and subsequently killed him.

PW 6 Police Constable Peter Yano, testified that at the material time he was attached to Crime branch at the Mau Narok Police Station. It was his testimony that on the 27th of June 2002 at about 9. 30 a.m., he was called by the officer in charge of the station Inspector Jacob Muchai and told to go to the Anti Stock Theft Unit Patrol Base at Mwisho wa Lami. PW 6 was accompanied by Police Constable Patrick Kirimi. They went to the scene of the crime. They found the father and the mother of the deceased. They were directed to where the body of the deceased was. They found the body. It was his testimony that the neck of the deceased was tied with a sisal rope. He testified that the body was then taken to the Nakuru Provincial General Hospital. PW 6 stated that he was not the investigating officer in the case. PW 6 testified that he went to the scene and observed the scene. PW 6 also verbally interrogated the father of the deceased who told him that it was the Subject who had killed the deceased. PW 6 further testified that his rank did not allow him to be the investigating officer in the case. He was sure that the rope that he saw on the neck of the deceased was a sisal rope and not any other type of rope. He further testified that the rope on the neck of the deceased was removed at the Police Station, Mau Narok.

PW 7 Police Constable Patrick Kirimi Mwenda testified that one the 27th of June 2002 he accompanied PW 6 to the scene where the body of the deceased was retrieved. This was after he had been instructed by the Officer in charge Mau Narok Police Station, Inspector Muchai. PW 7 testified that he saw a rope tied on the neck of the deceased. The rope was sisal and was whitish in colour. It was his evidence that the rope in question was removed at the mortuary. PW 7 accompanied the parents of the deceased to the Nakuru Provincial General Hospital where the postmortem was undertaken. PW 7 rearrested the Subject who had been earlier arrested by the Police Officers attached to Mwisho was Lami, Anti Stock Theft Unit Patrol Base. PW 7 testified that from the evidence that he knew in respect of the case, there was no evidence that incriminated the Subject.

PW 8 Inspector Jacob Muchai testified that at the material time he was the Officer in Charge of Mau Narok Police Station. He testified that when he received the information about the suspected murder of the deceased, he, accompanied by PW 6 and PW 7 went to the scene where the body was found. PW 8 testified that he first went to the Anti Stock Theft camp where he got the Subject who accompanied him to scene where the body was found. It was his testimony that he found the body of the deceased with a rope on his neck. There were pressure marks on the neck of the deceased.The body was lying in the farm some distance from the house of the Subject’s parents. The rope that had been tied on the neck of the deceased was a sisal rope. PW 8 testified that it appeared as if there was a struggle at the scene. PW 8 testified that the body of the deceased was then collected and taken to Nakuru Provincial General Hospital Mortuary. He rearrested the Subject and later the Subject was charged with the offence of murder. PW 8 denied that he was the Investigating Officer of the case. He testified that he did not know who investigated the case as he was transferred from Mau Narok Police Station soon after the incident. PW 8 further testified that there was no direct evidence linking the Subject to the crime. The only evidence that PW 8 could get from the witnesses was circumstantial evidence. PW 8 believed that there was sufficient evidence to support the charging of the Subject with the offence. It was PW 8’s testimony that he did not know who removed the rope from the neck of the deceased. He further testified that the case was investigated by many people and not any one specific officer.

After PW 8 had concluded adducing his evidence, the Prosecution closed its case. Miss Magana Learned Counsel for the Subject made Submissions urging this Court to discharge the Subject as no prima facie had been established. It is always the duty of the Prosecution to adduce evidence against an accused person to establish the guilty of such an accused person. The standard of proof in criminal cases is that of beyond reasonable doubt. In the instant case no evidence was adduced directly connecting the Subject with the death of the deceased. Apart from suspicion by the Subject’s stepfather, no other evidence either circumstantial or direct connected the Subject to the death of the deceased. PW 1, the mother of the deceased testified that she left the children at home on the material day and went to Church. She came back at about 6. 30 p.m. The deceased was nowhere to be seen. A search was mounted and the body of the deceased was later found in the farm with a rope round his neck. It appears that he deceased had been strangled to death. We are not sure. No medical evidence was adduced as to establish the cause of death of the deceased.

PW 5 Samuel Munyiri, a minor brother of the Subject and the deceased testified that on the material day about 5. 00 p.m., the deceased accompanied their sister called Njeri to go and fetch firewood. Njeri came back alone. PW 5 did not ask Njeri where she had left the deceased. No statement was recorded from Njeri to establish at what point she parted company with the deceased. Her evidence could have been crucial in establishing the chain of events leading to the death of the deceased. PW 5 testified that the Subject at the time had gone to fetch water for domestic use. PW 5 testified at no time was the Subject in the company of the deceased. PW 1 and PW 2, the mother and aunt of the Subject testified that the Subject was a well behaved child who could not possibly have done any harm to the deceased.

PW 4 and PW 6 the Police Officers who went to the scene where the body of the deceased was recovered testified that the step-father of the Subject told them that it was the Subject who had killed the deceased. This suspicion by the step-father of the deceased is what lead the Police to arrest and later charge the Subject. The step-father of the Subject did now however give evidence in Court. His evidence would have given some illumination on why he suspected that the Subject had killed his own brother. The Court was thus left to speculate the motive of the Subject (if indeed it was true) in killing the deceased. PW 6, PW 7 and PW 8 the Police Officers who went to the scene and recovered the body, all denied that they were the investigating officers of the case.The three Police Officers, all of whom apparently took statements from the witnesses, at one time or the other during the investigating of the case, did not want to own up to being the investigating officer in this case.

From the above summary of the evidence the reason is clear why none of the Police Officers involved in this case did not want to be tagged with the responsibility of the shoddy investigation that was conducted in this case. Many loose ends were left hanging. The loose ends were not addressed. Crucial witnesses were not availed in Court neither were statements recorded from the said witnesses. The rope which was allegedly found tied on the neck of the deceased was not produced in evidence. During the trial, the rope was marked for identification. But at the end of the trial, the rope in question had disappeared. It could not therefore be produced in evidence to establish that indeed the deceased had been strangled.

In the circumstances of this case, we are only left with the evidence of suspicion of the step-father of the Subject which suspicion was alluded to PW 4 and PW 6. The step-father of the deceased did not adduce evidence to enable this Court assess the basis of his suspicion. PW 1 and PW 2, the mother and the aunt of the Subject testified that the Subject was a well behaved child who could not have any motive in harming his younger sibling, the deceased. In the circumstances of this case, it is the finding of this Court that the Prosecution has not discharged its duty of proving the case against the Subject beyond reasonable doubt. The Subject was charged with the offence based on suspicion, which suspicion appears to have no basis at all in law. Matters were not helped by the fact that the Police in this case showed a singular lack of enthusiasm in investigating the case. The shoddy character of the investigation has put this Court in a situation where no other verdict can be given other than discharging the Subject. I do find that no prima facie has been established to enable this Court to order that the Subject be put on his defence. The Subject is consequently found to be not guilty. The Subject is discharged under Section 306(1) of the Criminal Procedure Code. He is set at liberty unless otherwise lawfully held. The Assessors in this case consequently ordered discharged.

DATED at NAKURU this 4th day of November, 2004.

L. KIMARU

AG. JUDGE